Symposium on Reproductive Violence in International Law: A New Era of Accountability for Reproductive Violence at the ICC?

Symposium on Reproductive Violence in International Law: A New Era of Accountability for Reproductive Violence at the ICC?

[Valeria Babără works as Legal and Advocacy Officer with the Women’s Initiatives for Gender Justice, where she monitors and researches developments on the prosecution and adjudication of gender-based crimes, and contributes to legal publications including ‘The Hague Principles on Sexual Violence‘ and ‘Judicial Approaches to SGBC at the ICC‘.]

This post forms part of the Opinio Juris Symposium on Reproductive Violence in International Law, in which diverse authors reflect on how the International Criminal Court and other jurisdictions have responded to violations of reproductive health and reproductive autonomy. The symposium complements a one-day conference to be held on 11 June 2024,  in which legal practitioners, scholars, activists, and survivors will meet in The Hague and online to share knowledge and strategies for addressing reproductive violence in international criminal law. Interested readers can register to attend the conference online without cost.

Recent advancements at the International Criminal Court (ICC) indicate a promising shift towards the recognition and prosecution of reproductive violence as a distinct category of crimes. 

A decisive step in this direction was the first conviction for a reproductive crime, that of forced pregnancy, in the case against Dominic Ongwen, former commander of a brigade of the Ugandan Lord’s Resistance Army (LRA), upheld by the ICC Appeals Chamber in December 2022. Other indicators of this trend include a recognition of the concept of reproductive violence by the Office of the Prosecutor (OTP) in its recently updated Policy on Gender-Based Crimes, as well as an ongoing discussion on the intersection between crimes of reproductive violence and other crimes or how they potentially form part of broader criminal conduct, in the context of the development of a Policy on Slavery Crimes. Additionally, charges of reproductive violence feature in the document containing the charges against LRA founder and leader Joseph Kony, issued earlier this year. 

Reproductive crimes were until recently relatively inconspicuous in international criminal law and were generally subsumed under the category of sexual violence, thereby neglecting the specific harm they inflict: the violation of an individual’s reproductive autonomy. This aspect was underscored by the Ongwen Trial Chamber which found that the evil committed by the crime of forced pregnancy should be properly characterized and not punished as a combination of other crimes or subsumed under the generic crime of ‘any other form of sexual violence’. As Rosemary Grey explains, categorizing acts under the broader umbrella of ‘sexual violence’ indicates the primary harm to be the victim’s sexual autonomy, whereas with crimes of reproductive violence there is an additional aspect to consider, namely the harm of violating the victim’s reproductive autonomy.

The conflation of sexual and reproductive crimes is understandable as conduct which results in a violation of sexual autonomy also often affects reproductive autonomy. This is however not universally the case. Examples of conduct that affect reproductive but not necessarily sexual autonomy might include: restrictions on access to reproductive healthcare; restrictions on access to prenatal or maternal healthcare; enforcing labour conditions known to adversely affect reproductive health; exposure to environmental pollutants, radiation or chemical agents affecting fertility; enforcing genetic manipulation; deception or economic coercion regarding reproduction; and segregation or differential treatment based on fertility or reproductive status. 

Reproductive violence extends beyond the crimes explicitly enumerated in the Rome Statute, i.e. forced pregnancy as a crime against humanity and war crime (articles 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi)); enforced sterilization as a crime against humanity and war crime (articles 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi)); and genocide by imposing measures intended to prevent births (article 6(d)). An earlier post in this symposium by Vuillemin and Grey examined the advocacy that led to listing some of these crimes in the Statute. 

The scope of reproductive violence is nevertheless much broader and encompasses a variety of deprivations of reproductive autonomy, such as:  impregnating persons or subjecting them to forced pregnancy, forced sterilization, reproductive sabotage (including tampering with or damaging condoms or other contraceptives), forced parenthood or preventing them from making choices as to whether or not to use contraception, to undergo sterilization,to impregnate another person, or to carry a pregnancy in their own body to term (p. 16). The 2023 OTP Policy on Gender-Based Crimes mentions some of these broader examples (para 37) but charges on these bases are yet to be brought. 

Conduct violating reproductive autonomy can be charged in the context of other Rome Statute crimes, including enslavement (article 7(1)(c)), persecution (article 7(1)(h)), outrages on personal dignity (articles 8(2)(b)(xxi) and 8(2)(c)(ii)), torture (articles 7(1)(f), 8(2)(a)(ii) and 8(2)(c)(i)) and other inhumane acts (article 7(1)(k)), and even the residual category of ‘other forms of sexual violence’ (articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi)). 

Prosecuting Reproductive Violence at the ICC

Prior to Ongwen, reproductive crimes have been mentioned but not charged in a series of ICC cases. During the trial against Thomas Lubanga, founder and leader of the Union of Congolese Patriots in the Democratic Republic of Congo (DRC), a prosecution witness testified that female child soldiers from Lubanga’s group were impregnated through rape, and some were forced to abort. Victims’ representatives asked the Trial Chamber to recharacterize the facts and add a charge of cruel or inhumane treatment for forced impregnation and forced abortion, and while the majority of the Chamber ruled in favour of the victims, the decision was rejected on appeal on procedural grounds. This was despite ample evidence from local and international organizations, including by Women’s Initiatives for Gender Justice, and prosecution witnesses, about incidences of rape and other forms of sexual violence in the Ituri region in eastern DRC. 

Evidence of sexual violence was mentioned in the Lubanga judgment but this was not the case for reproductive violence, except for one reference to ‘unwanted pregnancies’. In a Separate and Dissenting Opinion, Judge Odio Benito characterized sexual violence as inherent in the use of child soldiers. Had the prosecution presented charges for sexual and reproductive crimes in this first case to go to trial at the ICC, it could have potentially paved the way for an earlier exploration of these offences. 

In the 2008 application for an arrest warrant against former President of Sudan, Omar Al-Bashir, the prosecution alleged that ‘hundreds’ of women and girls from particular ethnic groups in Darfur became pregnant or died due to rapes by Sudanese armed forces and affiliated Janjaweed militia, but this evidence was not referred to in the 2009 and 2010 arrest warrant decisions of the Pre-Trial Chamber.

In the case against Jean-Pierre Bemba, former leader of the Movement for the Liberation of the Congo, charged with crimes in the Central African Republic, despite alleging that many female victims of rape became pregnant as a result of rape, the prosecution brought no charges for forcible impregnation, treating it instead as a consequence of rape. The Trial Chamber did, however, mention the ‘unwanted pregnancies’ as an aggravating factor of rape in the sentencing decision (para 36).

A charge of forcible circumcision was brought against Uhuru Muigai Kenyatta, Kenya’s Deputy Prime Minister and Minister of Finance during the 2007-2008 post-election violence. The prosecution charged this under article 7(1)(g) of the Statute as the crime against humanity of ‘other form of sexual violence’. This conduct could have also been charged under the same article as ‘enforced sterilization’. The prosecution’s characterisation was however also challenged by both the Pre-Trial and Appeals Chambers, finding that the forcible circumcisions in this case are more properly qualified as ‘other inhumane acts’ (article 7(1)(k)) and that instead of being of a sexual nature, the acts were rather ‘motivated by ethnic prejudice’ (pp 58-61). A more intersectional interpretation of this conduct might have revealed that the ethnic prejudice motivation does not preclude it from also constituting violations of both sexual and reproductive autonomy.

Reproductive violence was also referred to in the case against Callixte Mbarushimana for crimes perpetrated in the DRC, where the document containing the charges mentions soldiers cutting open a pregnant woman’s stomach, ‘causing her moving foetus to fall out’, and women miscarrying pregnancies as a result of rape (paras 70, 81). As the prosecution’s evidence was insufficient in this case for the confirmation of the charges, it did not proceed to trial.

Setting a Precedent for Forced Pregnancy Prosecution in Ongwen

In the Ongwen case, the ICC Trial Chamber had a chance to rectify earlier missed opportunities by taking a closer look at the origins of the crime of forced pregnancy and interpreting the Statute in line with internationally recognised human rights. It found that ‘the crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy and the right to family’ (para 2717), and noted the Rome Statute’s narrow definition of forced pregnancy, resulting from the controversy surrounding the provision (see earlier post by Vuillemin and Grey).

In examining the elements of forced pregnancy as a crime against humanity or war crime, the Trial Chamber found the first element to be ‘unlawful confinement’, holding that ‘the woman must have been restricted in her physical movement contrary to standards of international law’ (para 2724) and the second element was ‘that the woman has been forcibly made pregnant’, explaining that ‘this is understood as encompassing the same coercive circumstances described for other sexual violence crimes in the Statute’ (para 2725). 

With regard to the mens rea, the Chamber found that in addition to the requirements of ordinary intent and knowledge (article 30 of the Statute), the perpetrator must also act with the specific intent of ‘affecting the ethnic composition of any population or carrying out other grave violations of international law’ (para 2726, emphasis added), meaning that the crime would apply even in circumstances that are not related to ethnic cleansing, and that other grave violations of international law include ‘confining a woman with the intent to rape, sexually enslave, enslave and/or torture her’ (para 2727). The Chamber further found that it is not required that the accused specifically intended to keep the woman pregnant, or that it be the same person who made the woman forcibly pregnant (para 2723).

On appeal, the Chamber invited submissions on the legal interpretation of various crimes, including that of forced pregnancy, which led to a series of in-depth observations on these crimes. One group of amici, including the Women’s Initiatives for Gender Justice, provided expertise on issues including (i) the irrelevance of national laws relating to pregnancy when interpreting the RS’s definition of forced pregnancy; (ii) the elements of ‘forced pregnancy’ as a war crime and crime against humanity; and (iii) the grounding of the crime of forced pregnancy in human rights that protect personal, sexual, and reproductive autonomy. 

Another submission revealed how forced pregnancy is distinct from other sexual and gender-based crimes, its materially specific elements being (i) the state of being forced to be pregnant; (ii) a coerced and forced confinement; and (iii) the risk of ostracization once released from captivity. This group also highlighted that, due to the distinctive nature of SGBC, it is both ‘proper and permissible’ to have cumulative charges and convictions for such crimes (para 23). 

A third group emphasized that forced pregnancy is a ‘gender-specific’ crime targeting any individual who was assigned as female at birth, including trans and gender diverse people, and that its victims endure distinct harms stemming from the pregnancy itself but also forced childbirth, forced maternity, and potential stigma when returning to their communities (para 10; see also WIGJ et al, fn 41). It was similarly submitted that victims are affected both physically and emotionally, given the circumstances of their captivity and the fact that they are carrying the child of their captor, and that the harm also extends to the children and can have lifelong effects (paras 11-12). 

Ongwen’s conviction for forced pregnancy was upheld on appeal in December 2022, the Appeals Chamber confirming among others the irrelevance of Uganda’s national laws on pregnancy and the core value protected by this crime – that of reproductive autonomy.  

Moving Forward

Recent years have seen significant strides towards recognizing reproductive violence as a distinct category of crimes, not only in the courtroom but also through efforts to update and formulate OTP policies which can guide investigators and prosecutors in better understanding these crimes. As discussed above however, the Rome Statute’s potential to prosecute a wider range of violations to reproductive autonomy remains largely unexplored. Moving forward, it will be important to leverage this potential, including by understanding how reproductive violence intersects with other crimes and prosecuting under the umbrella of other crimes. 

It remains to be seen whether commendable practices established in Ongwen – that of interpreting the crime in line with internationally recognised human rights and that of inviting external expertise for a comprehensive exploration of the origins and context in which these crimes occur – can be replicated in future cases. 

Looking ahead, besides the forced pregnancy charges in the Kony case, it will also be important to consider the reproductive implications of other crimes. A prime example is the war crime of starvation, alleged in the two recent arrest warrant applications for the Prime Minister and Minister of Defence of Israel. 

To effectively address reproductive violence at the ICC will require a comprehensive understanding of both the delineation of this violence from other crimes but also instances when it takes place in the context of or in conjunction with other crimes. Such understanding can contribute to refining legal definitions and prosecution strategies, and most importantly to an acknowledgement of the distinct harm and the subsequent implications on survivors’ lives, in order to be able to provide appropriate and meaningful redress.

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